CLARK v. KRUG (2007)

Plaintiff commenced this action seeking, inter alia, an accounting of the parties' law firm following his withdrawal from the partnership and its resulting dissolution.   Supreme Court appointed a referee in March 2001 to hear the matter and make recommendations to the court (see CPLR 4311).   In September 2004 the Referee discovered that an associate in the firm to which she was of counsel had worked on plaintiff's case approximately four years earlier, when the associate was employed by another law firm.   On a prior appeal, we granted defendants' motion seeking to disqualify the Referee pursuant to CPLR 4312(3) (Clark v. Krug, 28 A.D.3d 1122, 812 N.Y.S.2d 928).   By the motion that is the subject of this appeal, defendants thereafter sought to vacate the prior “decisions and orders” of the Referee.

We conclude that the court properly denied the motion.   Although the mandatory recusal of a judge deprives that judge of jurisdiction, thereby rendering all of his or her decisions and orders null and void (see Matter of Harkness Apt. Owners Corp. v. Abdus-Salaam, 232 A.D.2d 309, 648 N.Y.S.2d 586;  see generally People v. Berry, 23 A.D.2d 955, 259 N.Y.S.2d 971, cert. denied 385 U.S. 1017, 87 S.Ct. 737, 17 L.Ed.2d 554), the disqualification of a referee does not affect the jurisdiction of the court (see Matter of Treider v. Lamora, 44 A.D.3d 1241, 846 N.Y.S.2d 389;  Matter of Scinta v. Scinta, 129 A.D.2d 262, 265, 517 N.Y.S.2d 645).   Thus, contrary to defendants' contention, the disqualification of the Referee herein does not require the nullification of her “decisions and orders” as a matter of law (see Scinta, 129 A.D.2d at 265, 517 N.Y.S.2d 645).   We conclude that, because there was no actual impropriety or actual prejudice to defendants, the proceedings prior to the Referee's disqualification remain valid (see generally Matter of Gerald R.M., 12 A.D.3d 1192, 1194, 785 N.Y.S.2d 256;  Rochester Community Individual Practice Assn. v. Excellus Health Plan [Appeal No. 2], 305 A.D.2d 1007, 1008, 758 N.Y.S.2d 576, lv. dismissed 1 N.Y.3d 546, 775 N.Y.S.2d 242, 807 N.E.2d 292;  cf. McCormick v. Walker, 158 App.Div. 54, 56, 142 N.Y.S. 759).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: